11th Circuit Rejects Keyword Advertising Liability–Deltona v. NOCO

August 7, 2026 · by Eric Goldman · in E-Commerce, Emojis, Marketing, Search Engines, Trademark

This case involves two competitors in the vehicle-battery charger industry. The plaintiff calls its offering “Battery Tender” (based on the analogy of a ship’s tender) and claims trademark rights in the term. Believing that the term is generic, NOCO began using the term in reference to its own products. The plaintiff sued for trademark infringement and more. A jury found for the plaintiff and awarded $1.3M in actual damages and $5.75M in punitive damages. The judge added another $12M of equitable disgorgement and issued a permanent injunction, except with respect to keyword ads and comparative advertising.

Is “Battery Tender” Generic?

The court says that the term “battery tender” isn’t inherently generic because (1) the USPTO registered the term, and “registration puts a heavy thumb on the scale against genericness,” (2) it’s better characterized as a descriptive term because “tend is more a metaphorical than literal description of what a battery tender does,” and it has achieved secondary meaning over 30+ years, and (3) the plaintiff’s principal coined the term.

Keyword Advertising

Keyword bidding doesn’t constitute trademark infringement for a simple reason: It’s not “likely to cause consumer confusion with the plaintiff’s mark.” And it’s unlikely to cause consumer confusion with the plaintiff’s mark for an equally straightforward reason: The use of the plaintiff’s mark for keyword-bidding purposes occurs “behind the scenes,” so to speak. Consumers don’t—indeed, can’t—see the plaintiff’s mark—all that’s visible here is a NOCO ad….A consumer who sees a NOCO-sponsored ad, whether or not driven by keyword bidding, may well recognize the promoted NOCO product as an alternative to consider, but he’s unlikely for that reason alone to mistake it for Deltona’s own offering. Accordingly, confusion here depends on whether Deltona’s mark is visible in NOCO’s ad, not whether an ad that does not display or otherwise reference Deltona’s mark might have been (invisibly) triggered by the mark’s behind-thescenes use as a keyword.

The court acknowledges that keyword ads may distract consumers. However, “so long as NOCO’s ads don’t hold that company out as selling “battery tenders,” consumers aren’t likely to be confused—just potentially overwhelmed by the presence of alternative products.”

The court summarizes: “In holding that keyword bidding can’t constitute trademark infringement, we join the unanimous consensus of our sister circuits.” For this reason, the jury’s damages award needs to be reduced to the extent it was predicated on keyword ads.

Trademark Usage in Amazon Ad Text

This is wheelhouse trademark infringement; NOCO’s conduct was likely to mislead consumers into thinking that it sold “battery tenders.” NOCO insists that its ads weren’t confusing because Amazon marked them as “sponsored” and customers would therefore recognize them as ads. Even so, the sponsored ads’ content effectively stated that NOCO sold battery tenders, which it doesn’t—only Deltona does.

Usage in Amazon Product Description Text

Product descriptions are “below the line,” so to speak, and in smaller print—they are meant to inform a diligent customer rather than grab his attention. As a result, consumers are probably less likely to focus on them in the way they do the ads.

[Citation clearly needed for the last point. The panel appears to be making up hypotheses about consumer behavior.]

The court nevertheless ratifies the jury finding: “We think it clear that a reasonable jury could find that the product descriptions were part of an effort to misappropriate Deltona’s goodwill and confuse consumers.”

NOCO argued that the “battery tender” references in the product descriptions should be excused like keyword advertising. The court distinguishes product listings from keyword ads:

“Even if less conspicuous or prominent than the ad’s main text, it isn’t entirely invisible to the consumer’s eye in the way that a behind-the-scenes keyword is.”
The ad’s “sponsored” label would alert consumers of the differences between the companies. [This also seems like a dubious empirical claim.]

The court summarizes:

Even if consumers didn’t actually read NOCO’s product descriptions, NOCO impermissibly held itself out in those descriptions as a seller of battery tenders, rather than a provider of alternatives to battery tenders, as it did, for instance, when using a keyword-bidding strategy to drive traffic to its own products. The inclusion of “battery tender” in the description automatically not only affected Amazon search results but also drove shoppers searching for Deltona’s battery tenders to NOCO chargers without alerting them in any way—through a “sponsored” tag or otherwise—that they weren’t really looking at battery tenders.

[To be fair, NOCO’s attempts to equate keyword ads with product listings seems like it was never destined for success. NOCO had an appellate team of 7 Biglaw lawyers, apparently led by Jones Day and supported by Goodwin Proctor and Troutman Pepper. That’s a lot of very expensive lawyers who signed off on seemingly dubious positions. FWIW, Deltona’s appellate team was 3 lawyers from Shutts & Bowen.]

Other Marketing References

“The evidence supports the conclusion that, from the top down, NOCO actively tried to sow confusion about what a battery tender is.”

Injunction

Among other things, the lower court enjoined NOCO’s use of the term “tender,” even though Deltona’s trademark is “battery tender” and not just “tender.” The appellate court circles one of NOCO’s Amazon ads: “More Than Just A Tender. The Ultimate Charger.” To me, that sounds like comparative advertising or free use of a dictionary word that isn’t covered by a trademark registration, but the appellate court calls that a “loophole.” As a result, the appellate court upholds the injunction.

Implications

NOCO get a new trial to recompute actual damages, stripped of the keyword ads and some other pieces the appellate court reversed. I imagine the parties will settle rather than do a retrial because trial prep would likely cost more than any adjustments to the damages amount.

You can see what happens when a descriptive term (“battery tender”) gets weaponized. A competitor thought they could freely use the term, went too far, and will pay a high price for their error.

Despite the mostly-bad news for NOCO, the ruling does have a major bright spot: the court’s declaration that the 11th Circuit permits competitive keyword advertising, at least so long as the resulting ads don’t include the trademark in the text. This outcome isn’t surprising given how the 2nd and 9th Circuits have emphatically shut down keyword advertising cases. Still, extending that principle to a new geographic region is welcome news.

Emoji Discussion!

The court includes the following transcript of NOCO’s “virtual brainstorming session”:

The opinion shows its emojis! Yay! However, FN 2 says:

The documents in the record converted the emojis to their shortcodes (e.g., :joy: or :rolling on the floor laughing:). For clarity, we have replaced the shortcodes with the actual emojis to reflect the exchange as it presumably appeared between the NOCO employees.

There are a couple of problems here:

The parties didn’t properly prepare the evidence, so the emojis weren’t properly recorded in the record.
The judge can’t accurately recreate the emojis this way. First, each platform depicts the shortcodes differently, and the judge doesn’t explain how he picked these particular depictions. The images he picked may not accurately reflect how the emojis were actually depicted. Plus, because emoji depictions evolve over time, shortcodes today may produce a different depiction than the shortcodes did at the relevant time period. Further, emojis may differ in how the sender and recipient see them. As I say in my judicial trainings on emojis, emoji depictions should come in pairs. The judge assumed a canonical depiction, but that is typically a fallacy.

Case Citation: Deltona Transformer Corporation v. NOCO Company, 2026 WL 2236806 (11th Cir. Aug. 4, 2026)

* * *

More Posts About Keyword Advertising

11th Circuit Rejects Keyword Advertising Liability–Deltona v. NOCO

Comments and Pings